Profiles of Tools and Tactics

for
Environmental Mainstreaming

No. 3

PUBLIC INTEREST LITIGATION

A product of the Environmental Mainstreaming Initiative

(www.environmental-mainstreaming.org)

(supported by DFID and Irish Aid)

By Christoph Scwarte (FIELD)

International Institute for Environment and Development (IIED)

3 Endsleigh Street, London, WC1H 0DD
Tel: +44-207-388-2117; Fax: +44-207-388-2826
Email: UserGuide@iied.org
Website: www.iied.irg
 PUBLIC INTEREST LITIGATION (PIL)

Prepared by Christoph Schwarte (IIED)

Note: We are grateful for review comments provided by Lovleen Bhullar (India), Carol Hatton (WWF
UK), Niall Watson (WWF UK)

What is Public Interest Litigation for? What issues does public interest
litigation focus on?

Policy development √ Possible medium Environmental √

Planning √ and/or long term Social √
impacts Economic √
Field work Institutional
Investment
Assessment √ As part of the judicial
procedures
Monitoring √√ Compliance and
enforcement
Campaigning √ Supports campaigns

Purpose

Public Interest Litigation (PIL) describes legal tools which allow individuals, groups and communities
to challenge government decisions and activities in a court of law for the enforcement of the public
interest. PIL represents a departure from traditional judicial proceedings, as litigation is not necessarily
filed by the aggrieved person. To date, elements of PIL are recognised in a limited but growing
number of jurisdictions. However, its scope of application and the rules and procedure for initiating a
PIL differ widely.

In general, PIL cases deal with major environmental and social grievances. They are often used
strategically as part of a wider campaign on behalf of disadvantaged and vulnerable groups in society.
Where individuals, groups and communities do not have the necessary resources to commence
litigation, PIL provides an opportunity for using the law to promote social and economic justice. PIL
cases are often concerned with preventing the exploitation of human, natural and economic resources.

The value of PIL for sustainable development lies in its ability to correct decisions and render
government authorities accountable to civil society organisations. It can encourage governments to
make their human rights obligations meaningful to all parts of society and thus contribute to social and
environmental justice. It may encompass elements of other legal remedies such as class actions which
determine the rights of large numbers of people whose cases involve common questions of law or fact.
PIL often also entails a form of judicial review, examining the legality of decisions and activities of
public authorities or the constitutionality of the law.

Background facts

In principle, the State has the role of defining, protecting and enforcing the public interest. In civil
proceedings, the public interest has therefore been traditionally represented by, for example, the
ministere public (civil law) and the attorney general (common law). Historically, the development of
PIL is often attributed to the case of Brown v. Board of Education (1954) in which the US Supreme
Court found that a state's segregation of public school students by race was unconstitutional. The
defendant in the case was a public institution and the claimants comprised a self-constituted group with
membership that changed over time.

Many countries have since integrated the concept or certain components in their domestic legal order.
The Indian judiciary has been particularly creative in entertaining PILs and developing them into a

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legal tool for the poor and the public at large. Prior to the 1980s, only an aggrieved party had standing
(locus standi) to file a case. As a result, justice could rarely be delivered to the vast majority of citizens.
These days, even the court itself can initiate legal action ‘on its own motion’ (suo motu) following the
receipt of letters or public interest issues being raised in the media. PILs have also allowed the
judiciary to elaborate on certain principles of international environmental law, such as sustainable
development, the polluter pays principle and the precautionary principle.

PIL has developed differently in diverse countries, drawing on common background issues but within
specific conditions and different legal traditions. Depending on the national social, economic and
political circumstances and the independence of the judiciary, there are different pressures and
opportunities for PIL. In some countries PIL can be instituted in relation to almost all social, economic
and environmental rights, whilst, in others, its application is restricted to a specific subject. Substantive
and procedural legal requirements for the use of PIL therefore differ widely between different
jurisdictions.

Box 1: Basic stages in PIL

GERMANY

Who, when and why?

In Germany, PIL is confined to alleged violations of the Federal Natural Protection Act and associated
provisions. Only associations officially recognised by the environment authorities are eligible to initiate
a PIL. To be eligible for official recognition, an association must carry out activities for at least three
years that go beyond the territory of a single federal state and with the purpose of promoting the
interests of nature protection. A recognised association may initiate PIL proceedings against
government authorities for the protection of nature conservation areas or certain planning decisions
with an impact on the environment.

Some procedural issues

ƒ Associations can only institute public interest proceedings in certain circumstances, including
where the association is affected within the scope of activities set out in its Articles of Association
to the extent to which these are covered by the recognition granted.
ƒ The association must have put forward an opinion during the administrative procedures preceding
the adoption of the decision challenged in court.
ƒ Judicial proceedings must be initiated within one year.
ƒ The court considers all possible grounds for action, regardless of whether the association has
invoked that ground or not.
ƒ The court can only rescind the administrative decision challenged (in whole or in part).

INDIA

Who, when and why?

The Indian Constitution allows any public-spirited person, NGO or a public interest law firm to file a
case on behalf of a group of persons whose rights are affected. The court can also act on its own
motion. A PIL must be filed against government authorities, but private parties can also be included as
co-respondents. Cases in which a PIL can be filed include:
ƒ Environmental degradation;
ƒ Violation of basic human rights of the poor;
ƒ Content or conduct of government policy;
ƒ To compel municipal authorities to perform a public duty;
ƒ Violation of religious rights or other basic fundamental rights.

Procedural issues

ƒ A PIL is filed like any other writ petition and a copy is to be served to the opposite party.

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ƒ The petition is screened in the PIL cell of the court.
ƒ The matter is placed before a judge nominated by the Chief Justice.
ƒ During the proceedings, a Commissioner may be appointed by the judge to inspect the allegations.
ƒ The court may appoint senior advocates as amicus curiae to assist the court in PIL cases and to
ensure that the process of the court is not misused.
ƒ The court can order an interim measure to protect the public interest until the final order is made.

TANZANIA

Who, when and why?

The Constitution of Tanzania gives citizens the right to PIL as an independent and additional source of
standing. Proceedings may be instituted by any public-spirited individual to challenge either the
legality of public decisions or actions or the consistency of legislation with the constitution. In public
interest matters, the Attorney General is made the Respondent on behalf of the Government, its organs
or civil servants.

Procedural matters

The Basic Rights and Duties Enforcement Act of 1994 applies to PIL procedures:
ƒ The Act gives a right to the litigant to apply to the High Court for redress by filing a petition.
ƒ The Court can make all such orders that are necessary and appropriate to secure the enjoyment of
basic rights, freedoms and duties.
ƒ Where a petition challenges a law, the Court can allow the Parliament or the legislative authority to
correct that defect instead of declaring the law or an action invalid or unconstitutional.

Pros (main advantages) and Cons (main constraints in use and results)

PIL can:
ƒ encourage government accountability – government agencies perform better when they know that
they can be held accountable by the courts;
ƒ provide enforcement assistance – no government has enough resources to monitor and enforce all
potential violations of the law;
ƒ allow courts to clarify and interpret the law, close existing gaps and raise human rights,
environmental and social protection standards;
ƒ supplement the criminal justice system if, for example, fines are relatively low compared to the
amount of environmental degradation caused; and
ƒ result in restitution and compensation for damages and injustices suffered by individual, groups
and communities.

But PIL may also:

ƒ be abused by individuals or groups to further their personal or commercial interests;
ƒ lead to a large number of complex, long lasting cases which can ‘clog up’ the legal system and
create substantial costs;
ƒ give judges wide discretion in interpreting and defining the public interest which, arguably, could
violate the separation of powers doctrine and may be better done by a democratically elected
legislature;
ƒ be constrained through existing law which often does not reflect the current actual conditions on
the ground;
ƒ leave public interest litigants that are unsuccessful with an obligation to pay the often substantial
costs of the state and other parties;
ƒ depend heavily on the lawyers involved and the financial backing of parties; and
ƒ result in court judgments which government agencies fail to implement properly.

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 Box 2: Examples of PIL

INDIA

In Vellore Citizens' Welfare Forum vs. Union of India (1996) the Supreme Court allowed standing to a
public-spirited social organisation for protecting the health of residents of Vellore. In Vellore, tanneries
situated around a river were found discharging untreated effluents into the river, jeopardising the health
of the residents. The Court noticed that the leather industry was a major foreign exchange earner and
Tamil Nadu's export of finished leather accounted for 80% of the country's export of that commodity.
Nevertheless, the Court pointed out that the leather industry had no right to destroy the ecology,
degrade the environment and pose a health hazard. The Court asked the tanneries to close their
business.

UNITED KINGDOM

In 2003 a British company (Able UK) was commissioned by the US government to scrap 13 ‘ghost
ships’ containing environmentally threatening waste products. The site in Hartlepool, where the ships
were supposed to be scrapped, was adjacent to sensitive wildlife habitats protected under European and
international law. The site’s original planning permission only allowed for the dismantling and
refurbishment of oil platforms and other marine structures. Public Interest Lawyers, a UK non-
governmental organisation acting on behalf of local residents, successfully brought a public interest
law suit against Hartlepool Council and Able UK in the High Court. The court ruled that the
Environment Agency's decision to modify Able UK's original waste management licence was unlawful
- as it did not consider the effect that dismantling the ships might have on nearby internationally-
protected wildlife sites (R (Gregan) v. Hartlepool Borough Council, 2003).

References and further information

Ashok H. Desai & S. Muralidhar, ‘Public Interest Litigation: Potential & Problems’ published in BN
Kirpal et al. (eds), Supreme But Not Infallible: Essays in Honour of the Supreme Court of India,
Oxford University Press, New Delhi, 2000, p.159

John E. Bonine, ‘Broadening “Standing to Sue” for Citizen Enforcement’, Fifth International
Conference on Environmental Compliance and Enforcement, available at
http://www.inece.org/5thvol2/bonine.pdf

Carola Glinskj, ‘Public Interest Environmental Litigation in South Africa’, available at

http://www.saep.org/Interns/IntPro/intpro99/Glinski/Gliinski%20Paper.doc

Helen Hershkoff: ‘Public Interest Litigation - Selected Issues & Examples’, available at
http://siteresources.worldbank.org/INTLAWJUSTINST/Resources/PublicInterestLitigation%5B1%5D.
pdf

Peter Kessler, Michael Mehling & Dora Schaffrin, ‘Assignment: Support the SEPA legislation
department in strengthening the legal framework of public interest litigation in China’, EcoLogic
Research Report, 2006

Legalpundits, ‘Has public interest litigation attracted any criticisms?’, available at

http://www.Legalpundits.com

Peter Magelah et al., ‘Public interest litigation and the environment’ published in The Encyclopaedia
of Earth, available at http://www.eoearth.org/article/Public_interest_litigation_and_the_environment

Alex Wang, ‘Storm King & the Beginnings of US Environmental Law’, International Fund for China’s
Environmental NGO Forum, China, 5th November 2005

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Acknowledgements

Grateful thanks are due to Lovleen Bullar (India), Niall Watson and Carol Hatton (WWF UK) for
helpful comments on a draft of this profile).